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The US Department of Justice has floated a plan to advance criminal prosecutions against cyber-spies.

This is after the department's agency, the Defense Security Service (DSS) reported* this week that the number of foreign cyberattacks aimed at snaffling US tech, intellectual property, trade secrets and classified information rose by 75 per cent in 2010-11.

Report after report has alleged that state-sponsored hackers from China are trying to steal intellectual property from US high-tech firms. China routinely denies this but nobody believes it and the truth is probably every other country with the capability is almost certainly at it.

Congressional reports decrying hacking from China and Russia combined with diplomatic offensives by the State Department have failed to have much effect on cyber-espionage attacks against defence contractors and others. Offensive cyber retaliation is legally fraught, especially if directed against countries with business and economic ties to the US. In the absence of any better idea, filing indictments seems to have become a popular option.

"We are having people look at bringing one of these cases, it’s there to be brought, and you’ll see a case brought,” John Carlin, the principal deputy assistant Attorney General in the Department of Justice’s national security division toldDefense News.

Carlin added that up to 100 prosecutors are being specially trained in cyberespionage prosecution, under a programme dubbed the National Security Cyber Specialist, or NSCS, network. Individual hackers could be charged with offences in much the same way that conventional spies acting within a US territory can be charged with offences.

The big difference, of course, is that hacking attacks can be carried out anywhere in the world. Carlin said the DoJ may file indictments that name government officials or governments blamed for sponsoring hacking attacks. He added that indicting a government isn't unprecedented. He told the paper that in 2011, an Iranian Al Quds official was charged with conspiring to kill Saudi Arabia’s ambassador to the US. Even though there's no expectation that the case will be heard, such lawsuits can have a warning effect, the idea goes.

More plausibly Carlin suggested the most likely target for prosecution could be a foreign company that makes use of stolen technology.

“Whether it is a state-owned enterprise or a state-supported enterprise in China — if you can figure out and prove that they’ve committed the crime, charging the company means they can’t do business in the US, or in Europe,” Carlin told Defense News. “It affects their reputation and that then causes them to recalculate: 'Hey, is this worth it?’,” he added.

While the main responsibility for co-ordinated response to cyber attacks falls under the responsibility of the US Department of Homeland Security, the FBI and the DoD’s Cyber Command also have a role. The Defense Department is mainly tasked with defending military networks but can be drafted in to help address problems with civilian networks, in response to requests from US cabinet officers.

Reactions to the DoJ plan from cyber-security experts have been lukewarm. Richard Bejtlich, chief security officer at Mandiant, and a retired black hat instructor, commented: "What happens when the other side decides to prosecute US, etc?"

Bootnote

Espionage may be frowned upon, but international agreements implicitly accept it as a natural political activity - and every country with the capability is engaged in it.

And, of course, cyberspying is often illegal in the "victim country" and legal in the "aggressor country" - and one man's filthy, underhand (cyber) spy is another man's brave fighting hero risking life and limb behind enemy lines (firewalls), to paraphraseBlack Adder's General Melchett:

CAPTAIN DARLING: So you see, Blackadder, Field Marshall Haig is most anxious to eliminate all these German spies.